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        REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3468 OF 2007

R. Unnikrishnan and Anr. …Appellants

Versus

V.K. Mahanudevan and Ors. …Respondents

WITH

CIVIL APPEAL NO.3469 OF 2007

State of Kerala and Ors. …Appellants

Versus

V.K. Mahanudevan and Ors. …Respondents

AND  

CIVIL APPEAL NO.3470 OF 2007  

State of Kerala and Ors. …Appellants

Versus

V.K. Ananthan Unnikrishnan and Anr. …Respondents

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AND  

CIVIL APPEAL NO.              OF 2014 (Arising out of S.L.P. (C) No.24775 of 2013)

State of Kerala and Ors. …Appellants

Versus

Prem Kumar and Ors.          … Respondents

J U D G M E N T

T.S. THAKUR, J.

1. Leave granted in Petition for Special Leave to Appeal  

(Civil) No.24775 of 2013.

2. Common  questions  of  law  arise  for  consideration  in  

these appeals which shall stand disposed of by this common  

order.  But before we formulate the questions that fall  for  

determination  the  factual  matrix  in  which  the  same arise  

need  to  be  summarised  for  a  proper  appreciation  of  the  

controversy.

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3. Respondent-V.K. Mahanudevan in Civil Appeal No.3468  

of 2007 applied to Tehsildar, Alathur in the State of Kerala  

for grant of a Scheduled Caste Certificate on the basis that  

he was a ‘Thandan’ which was a notified Scheduled Caste.  

The Tehsildar held an enquiry and found that the appellant  

did  not  belong  to  the  Scheduled  Caste  community  and  

reported  the  matter  to  the  Director,  Scheduled  Caste  

Development Department, who in turn forwarded the case to  

Director,  Kerala  Institute  for  Research,  Training  and  

Development  Studies  of  Scheduled  Castes  and  Scheduled  

Tribes, (‘KIRTADS’ for short) for investigation and report.

4. Aggrieved  by  the  denial  of  the  certificate  the  

respondent filed O.P. No.9216 of 1986 before the High Court  

of Kerala which was disposed of by the High Court in terms  

of its order dated 25th February, 1987 with a direction to the  

Tehsildar concerned to issue a caste certificate in favour of  

the said respondent. A certificate was accordingly issued in  

his favour. It is common ground that the respondent was  

appointed as an Assistant Executive Engineer under a special  

recruitment scheme for SC/ST candidates.   

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5. Long after the certificate had been issued in favour of  

the  respondent  and  his  appointment  as  an  Assistant  

Executive Engineer in the State service, a Full Bench of the  

Kerala High Court in  Kerala Pattika Jathi Samrekshana  

Samithy v. State AIR 1995 Ker 337 observed that a large  

number  of  applications  for  change  of  caste  name  from  

‘Thiyya’  to  ‘Thandan’  had  been  received  pursuant  to  The  

Scheduled Castes and Scheduled Tribes Order (Amendment)  

Act,  1976  and  ordered  that  all  such  certificates  as  were  

corrected on the basis of such applications after 27th July,  

1977 ought to be scrutinized by a Scrutiny Committee. The  

High Court observed:   

“...The filing of  a large number of applications for   correction of the name of caste from Ezhava/Thiyya  to  Thandan  alleging  one  and  the  same  reason   immediately  after  inclusion of  Thandan community   as  Scheduled  Caste  in  the  1976  order  can  prima   facie be considered only as a concerted attempt on   the  part  of  Section  of  Ezhavas/Thiyyas  to  take  advantage of  the  benefits  of  Scheduled  Castes  as   alleged  in  the  counter  affidavit  of  the  first   respondent and asserted by the petitioner. It cannot   be  easily  believed  that  if  a  person  was  really  a   Thandan and as such a Scheduled Caste, his caste   would have been noted as Ezhava or Thiyya in the   school records. It cannot also be believed easily that   in large number of cases for no reason whatsoever   the same type of mistake was committed allowed to   be on record till Thandan community was included in   the  list  of  Scheduled  Castes.  As  such  taking  a  serious view of  the entire  problem we would hold   

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that in all cases where certificates have been issued   on  and  after  27-7-1977  the  date  of  1976  order   correcting the name of Caste from Ezhava/Thiyya to   Thandan  and  other  cases  where  certificates  have   been  issued  changing  the  Caste  into  a  Scheduled   Caste or Scheduled Tribe such certificates issued are   liable to be declared as of doubtful validly, till they   are  scrutinised  by  the  scrutiny  Committee  to  be   constituted  by  the  first  respondent  as  per  the   directions we propose to issue in that regard...”

         (emphasis supplied)

6. Pursuant to the above directions of the High Court the  

caste  certificate  issued  in  favour  of  the  respondent  also  

came under scrutiny.  In the course of scrutiny, it was found  

that the reports submitted by KIRTADS and relied upon by  

the  High  Court  while  allowing O.P.  No.9216 of  1986 was  

erroneous  and  that  the  respondent  actually  belonged  to  

Ezhuva  community  which  fell  under  the  OBC  category.  

Director,  KIRTADS  accordingly  issued  notice  to  the  

respondent to appear before him for a personal hearing in  

support of the claim that he was a Thandan and hence a  

Scheduled  Caste.  Aggrieved  by  the  said  proceedings  the  

respondent filed O.P. No.5834 of 1991 before the High Court  

of  Kerala  in  which  he  challenged  the  proposed  enquiry  

proceedings  relating  to  his  caste  status  primarily  on  the  

ground  that  the  decision  of  this  Court  in  Palaghat  Jilla  

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Thandan Samudhaya Samrakshna Samithi and Anr. v.   

State of Kerala and Anr.  (1994) 1 SCC 359 had settled  

the controversy relating to Ezhuva/Thiyya being a ‘Thandan’  

in the district of Palaghat. It was also contended that the  

respondent’s  own case that he was a Thandan Scheduled  

Caste had been settled by the High Court in terms of the  

order passed by the High Court in O.P. No.9216 of 1986.  

These  contentions  found favour  with  the  High  Court  who  

allowed O.P. No.5834 of 1991 filed by the respondent by its  

order dated 15th December, 1998 and quashed the ongoing  

enquiry proceedings.

7. Aggrieved by the order passed by the High Court the  

State of Kerala filed Writ Appeal No.1300 of 1999 which was  

allowed  by  a  Division  Bench  of  the  High  Court  by  its  

judgment and order dated 14th June, 1999 and directed a  

fresh  enquiry  into  the  caste  status  of  the  respondent  by  

KIRTADS.  Review Petition No.236 of 1999 filed against the  

said order by the respondent was dismissed by the Division  

Bench by its order dated 29th July, 1999. The Division Bench,  

however, specifically reserved liberty for the respondent to  

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bring the judgments pronounced in O.P. No.9216 of 1986  

and  O.P.No.5470  of  1988  to  the  notice  of  the  Director,  

KIRTADS and declined to express any opinion of its own as  

to the effect of the said judgments. This is evident from the  

following passage from the order passed by the High Court:

“At the time of argument our attention was drawn  to Ext. P7 judgment dated 25.2.87 in O.P. 9216/86   and also the judgment of a Division of this Court in   O.P. 5470/88 for the proposition that this Court has   already accepted the status of the petitioner in the   above two cases.  We are not inclined to express   any opinion on the two judgment referred to above.   It is for the review petitioner to place the above two   judgments  and other  materials,  if  any before  the   Director  for  his  consideration  and  report.   The  Director of Kirtads is directed to send his report to   the State government within three months from the  date  of  receipt  of  copy  of  the  judgment  and  the  Government  may  consider  the  entire  matter  on  merits  and  pass  appropriate  orders  accordingly,   Review petition is disposed of as above.”  

8. A  fresh  enquiry  accordingly  commenced  in  which  

Vigilance Officer,  KIRTADS, reported that  the genealogical  

and  documentary  evidence  available  on  record  proved  

beyond doubt that the respondent and all his consanguinal  

and  affinal  relatives  belonged  to  the  ‘Ezhuva’  and  not  

‘Thandan’ community.  The Scrutiny Committee acting upon  

the said report issued a show-cause notice to the respondent  

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to show cause as to why the certificate issued in his favour  

should not be cancelled.  

9. Aggrieved by the notice issued to him the respondent  

once again approached the High Court in O.P. No.2912 of  

2000 which was disposed of by the High Court by its order  

dated 4th July, 2001 with a direction that the KIRTADS report  

shall be placed before the State Government for appropriate  

orders.  The  State  Government  accordingly  considered  the  

matter  and passed an order  dated 18th January,  2003 by  

which it  concurred with the report and the view taken by  

KIRTADS and declared as follow:

“(i) It is declared that Shri. V.K. Mahanudevan, S/o   Shri Kunjukuttan, Kunnissery House, Kottaparambil,   Vadakkancherry,  Alathur,  Palakkad  District  who  is   now working as Executive Engineer, Minor Irrigation   Division,  Irrigation  Department,  Palakkad  does  not   belong to Thandan Community which is a Sch. Caste,   but belongs to Ezhava Community included in the list   of Other Backward Classes (OBC).

(ii)  None  of  the  members  of  his  family  shall  be   eligible for any of the benefits exclusively intended   for  members  of  the  Sch.  Castes.  If  any  of  the   members  of  the  family  of  Shri  V.K.  Mahanudevan  have  availed  of  any  of  the  benefits  meant  for   members of the Sch. Castes, all such benefits availed  of shall be recovered.

(iii) If the caste entry in respect of the members of   the family of Shri V.K. Mahanudevan as recorded in   

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their academic records is Thandan (SC), it shall be  corrected as Ezhava.

(iv) Sch. Caste Certificates shall not be issued to any  of  the  members  of  the  family  of  Shri  V.K.   Mahanudevan  hereafter.  All  the  Sch.  Caste  Certificates secured by Shri V.K. Mahanudevan and  his family members will stand cancelled.

(v) On completion of the actions as per this order the   services  of  Shri  V.K.  Mahanudevan,  Executive   Engineer,  Minor  Irrigation Division in the Irrigation   Department  shall  be  terminated  forthwith  and  a  member of Sch. Caste community shall be appointed   against  the  post  in  which  Shri  V.K.  Mahanudevan  was  appointed  in  the  Irrigation  Department  if  his   appointment  was  on  consideration  as  member  of   Sch. Caste.”  

10. Aggrieved by the order passed by the Government, the  

respondent and his brother who is respondent in Civil Appeal  

No.3470  of  2007  challenged  the  order  passed  by  the  

Government before the High Court in O.P. No.5596 of 2003  

and Writ Petition (C) No.20434 of 2004 respectively which  

were allowed by a Single Judge of the High Court in terms of  

its  order  dated  11th November,  2005,  primarily  on  the  

ground that the issue of caste certificate to the respondent  

had already been concluded by the judgment of the High  

Court dated 25th February, 1987 in O.P.  No.9216 of 1986  

and that the said question could not be re-opened so long as  

the said judgment of the High Court was effective.   

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11. The State of Kerala then preferred Writ Appeal No.134  

of 2006 which was dismissed by a Division Bench of the High  

Court  in  terms  of  its  order  dated  25th January,  2006  

concurring with the view taken by the Single Judge that the  

issue  regarding  the  caste  status  of  the  respondent  stood  

concluded by a judicial order passed inter parties and could  

not, therefore, be re-opened. Writ Appeal No.410 of 2006  

filed by the aggrieved members of the Irrigation Department  

and Writ Appeal No.193 of 2006 filed by the State in relation  

to respondent were dismissed by the Division Bench on the  

same  terms  by  order  dated  28th and  27th January,  2006  

respectively. So also Review Petition No.263 of 2006 filed by  

the State against the order passed by the Division Bench  

was dismissed  with  the observation  that  the  judgment  in  

O.P.  No.9216 of 1986 had effectively  settled the question  

regarding the caste status of the respondent. Civil Appeals  

No.3469 and 3470 of  2007 have been filed  by  the State  

against  the  said  judgment  of  the  High  Court  while  Civil  

Appeal No.3468 of 2007 has been filed by the members of  

the  Irrigation  Department  of  the  Government  of  Kerala.  

Civil Appeal arising out of Petition for special leave to appeal  

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(Civil) No.24775 of 2013 has been filed by State against the  

Order dated 5th September, 2012.

12. Two distinct  questions fall  for  determination  in  these  

appeals. The first is whether the appellants could have re-

opened for examination the caste status of the respondent-

V.K. Mahanudevan no matter judgment of the High Court in  

O.P No.9216 of 1986 had declared him to be a ‘Thandan’  

belonging to a Scheduled Caste community.   The High Court  

has as seen above taken the view that  its  judgment and  

Order  in  O.P.No.9216  of  1986  effectively  settled  the  

question  regarding  the  caste  status  of  respondent  which  

could not be reopened as the said judgment had attained  

finality.  The second and the only other question that would  

arise  for  determination  is  whether  the  respondent-V.K.  

Mahanudevan  can  claim  protection  against  ouster  from  

service and, if so, what is the effect of the change in law  

relevant to the caste status of the respondent. We propose  

to deal with the two questions ad seriatim.     

13. In  O.P  No.  9216  of  1986,  the  respondent  (writ  

petitioners in OP) had claimed to be a Thandan by Caste,  

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hence, a Schedule Caste in terms of the Scheduled Castes  

and Scheduled Tribes Orders (Amendment) Act, 1976. In the  

SLCC book  the  respondent  was  described  as  a  “Thandan  

Hindu”  but  falling  in  the  OBC  category.  He  applied  for  

correction of the SLCC book by deleting his description as an  

OBC and for  treating him as a member of  the Scheduled  

Caste.  Since the correction did not come about quickly, he  

moved  to  the  High  Court  for  a  direction  against  the  

respondents to treat him as a Scheduled Caste and to make  

appropriate  entries  in  the  relevant  record.  Kerala  Public  

Service  Commission,  Director,  Harijan  Welfare  Board,  

Trivandrum were among others arrayed as respondents to  

the writ petition.  When the matter appeared before a Single  

Bench of the High Court for hearing, it  was reported that  

Director,  Kerala  Institute  for  Research  Training  and  

Development  Studies  of  Scheduled  Castes  and  Scheduled  

Tribes,  Kozhikode  (KIRTADS)  had  conducted  an  

anthropological  study  and  recorded  a  finding  that  the  

respondent–writ petitioner before the High Court belonged  

to  Thandan  Community  and  that  he  was  entitled  to  be  

treated  as  a  Scheduled  Caste.  Government  advocate  

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representing  the  respondents  appears  to  have  submitted  

before the Court that the findings recorded by the KIRTADS  

had been communicated to the Director of Harijan Welfare,  

Trivandrum–respondent  no.3  in  the  writ  petition  and  

accepted by him. It was on these submissions made before  

the  High  Court  that  the  Single  Bench  of  the  High  Court  

passed an Order dated 25th February, 1987, the operative  

portion whereof read as under :-

“I record the submission of the Government Pleader   that the 3rd respondent has accepted the findings of   the 4th respondent that the petitioner is a Thandan   and hence entitled to  the benefits  as  a scheduled   caste.   The  6th respondent  may  implement  this   finding  and  issue  certificate  to  the  petition  in  the   prescribed  form certifying  that  the  petitioner  is  a   Thandan, a member of the scheduled caste.   This   shall be done within a period of ten days from today.   Based thereon the 5th respondent will also make the  necessary  changes  in  the  S.S.L.C.  book  of  the  petitioner treating him as a scheduled caste and not   as  an  D.B.C.  This  also  will  be  done  by  the  5th  

respondent  within  a  period  of  one  month  from  today.”

14. A  caste  certificate  was  in  the  above  circumstances  

issued in  favour  of  the respondent  pursuant  to  the order  

passed by the High Court which order has attained finality  

for the same has not been challenged leave alone modified  

or set aside in any proceedings till date. The question in the  

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above  context  is  whether  a  fresh  enquiry  into  the  Caste  

Status  of  the  respondent  could  be  instituted  by  the  

Government. The enquiry, as seen earlier, was initiated in  

the light of the certain observations made by the full bench  

of  the  Kerala  High  Court  in  Kerala  Pattika  Jathi  

Samrekshana  Samithy  v.  State   AIR  1995  Ker  337  

whereby the High Court had entertained suspicion about the  

validity  of  certificates  that  were corrected  after  27th July,  

1997.  That  pronouncement  came nearly  eight  years  after  

the High Court had disposed of O.P. No.9216 of 1986 and a  

resultant certificate issued in favour of the respondent.  It  

was  in  the  above  backdrop  rightly  argued  by  Mr.  Giri  

appearing for the respondent that the judgement and order  

passed by the High Court in O.P No.9216 of 1986 having  

attained finality no fresh or further enquiry into the question  

settled thereby could be initiated, the observations of the  

full bench of the High Court to the contrary notwithstanding.  

The judgement of the High Court in  Pattika Jathi’s  case  

(supra), it is obvious, from a  reading thereof, does not deal  

with situations where the issue regarding grant of validity of  

a  caste certificate  secured earlier  than the said judgment  

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had  been  the  subject  matter  of  judicial  proceedings  and  

effectively and finally resolved in the same.  That apart, the  

respondent was not a party to the proceedings before the  

full bench nor was the certificate issued in his favour under  

challenge in those proceedings.  The full bench did not even  

incidentally  have to examine the validity  of  the certificate  

issued  to  the  respondent  or  the  correctness  of  the  order  

passed by the High Court pursuant to which it was issued.  

Such being the position the direction issued by the full bench  

of  the  High  Court  could  not  possibly  have  the  effect  of  

setting at naught a judgment delivered inter-parties which  

had attained finality and remained binding on all concerned.  

15. It  is  trite  that  law favours finality  to  binding judicial  

decisions pronounced by Courts that are competent to deal  

with the subject matter.  Public interest is against individuals  

being vexed twice over with the same kind of litigation.  The  

binding character of judgments pronounced by the Courts of  

competent  jurisdiction  has  always  been  treated  as  an  

essential  part of the rule of law which is the basis of the  

administration of justice in this country. We may gainfully  

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refer to the decision of Constitution Bench of this Court in  

the  Daryao v. State of U.P.   AIR 1961 SC 1457 where  

the  Court succinctly summed up the  law in  the  following  

words:

“It  is  in  the interest  of  the  public  at  large that  a   finality  should  attach  to  the  binding  decisions   pronounced by Courts of competent jurisdiction, and   it is also in the public interest that individuals should   not  be  vexed  twice  over  with  the  same  kind  of   litigation.(***) The binding character of judgments   pronounced  by  courts  of  competent  jurisdiction  is   itself an essential part of the rule of law, and the rule   of law obviously is the basis of the administration of   justice  on  which  the  Constitution  lays  so  much  emphasis.”

16. That  even  erroneous  decisions  can  operate  as  res-

judicata is also fairly well settled by a long line of decisions  

rendered  by  this  Court.  In  Mohanlal  Goenka v.  Benoy  

Kishna Mukherjee  AIR 1953 SC 65, this Court observed:

“There  is  ample  authority  for  the  proposition  that   even  an  erroneous  decision  on  a  question  of  law  operates as ‘res judicata’ between the parties to it.   The correctness or  otherwise of  a judicial  decision   has no bearing upon the question whether or not it   operates as ‘res judicata’.”

17. Similarly in State of West Bengal v. Hemant Kumar  

Bhattacharjee  AIR 1966 SC 1061, this Court reiterated  

the above principles in the following words :  

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“A wrong decision by a court having jurisdiction is as   much binding between the parties as a right one and  may  be  superseded  only  by  appeals  to  higher   tribunals  or  other  procedure like review which the   law provides.”

18. The recent decision of  this  Court in  Kalinga Mining  

Corporation v. Union of India (2013) 5 SCC 252 is a  

timely  reminder  of  the very same principle.  The following  

passage in this regard is apposite:

“In  our  opinion,  if  the  parties  are  allowed  to   reagitate issues which have been decided by a court   of competent jurisdiction on a subsequent change in   the  law  then  all  earlier  litigation  relevant  thereto   would  always  remain  in  a  state  of  flux.  In  such   circumstances,  every  time  either  a  statute  or  a   provision  thereof  is  declared  ultra  vires,  it  would   have the result of reopening of the decided matters   within the period of limitation following the date of   such decision.”

19. In Mathura Prasad v. Dossibai (1970) 1 SCC 613,  

this Court held that for the application of the rule of  res-

judicata, the Court is not concerned with the correctness or  

otherwise of the earlier judgement.  The matter in issue if  

one purely of fact decided in the earlier proceedings by a  

competent Court must in any subsequent litigation between  

the same parties be recorded as finally decided and cannot  

be re-opened. That is true even in regard to mixed questions  

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of law and fact determined in the earlier proceeding between  

the same parties which cannot be revised or reopened in a  

subsequent proceeding between the same parties.  Having  

said  that  we  must  add  that  the  only  exception  to  the  

doctrine of  res-judicata is  “fraud”  that vitiates the decision  

and renders it  a nullity.  This Court has in more than one  

decision held that fraud renders any  judgment,  decree or  

orders a nullity and non-est in the eyes of law.   In A.V.  

Papayya Sastry v. Government of A.P.,  (2007) 4 SCC  

221, fraud was defined by this Court in the following words:

“Fraud  may  be  defined  as  an  act  of  deliberate   deception with the design of securing some unfair or   undeserved  benefit  by  taking  undue  advantage  of   another. In fraud one gains at the loss and cost of   another.  Even  most  solemn  proceedings  stand  vitiated if they are actuated by fraud. Fraud is thus  an extrinsic collateral  act which vitiates all  judicial   acts, whether in rem or in personam. The principle of   “finality  of  litigation”  cannot  be  stretched  to  the   extent of an absurdity that it can be utilised as an   engine  of  oppression  by  dishonest  and  fraudulent   litigants.”

20. To the same effect is the decision in  Raju Ramsingh  

Vasave v. Mahesh  Deorao  Bhivapurkar  and  Ors.,  

(2008) 9 SCC 54, where this Court held:

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“If  a  fraud  has  been  committed  on  the  court,  no   benefits  therefrom can be claimed on the basis of   thereof or otherwise.”

21. In the case at hand we see no element of fraud in the  

Order  passed by the High Court  in  O.P.No.9216 of  1986.  

The order  it  is  evident  from a plain  reading of  the same  

relies  more  upon  the  submissions  made  before  it  by  the  

Government Counsel than those urged on behalf of the writ-

petitioners (respondents herein). That there was an enquiry  

by  KIRTADS  into  the  caste  status  of  the  writ  petitioners  

(respondents  herein)  which  found  his  claim  of  being  a  

Thandan  justified  hence   entitled  to  a  scheduled  caste  

certificate  has  not  been  disputed.   That  the  report  of  

KIRTADS was accepted by the Director of Harijan Welfare,  

Trivandrum  is  also  not  denied.   That  apart,  the  State  

Government  at  no stage either  before  or  after  the  Order  

passed by the Single Judge of the High Court questioned the  

conclusions recorded therein till  the full  bench in  Pattika  

Jathi’s case (supra) expressed doubts about the corrections  

being made in the records and certificates for the grant of  

scheduled caste status.  That being the case, the High Court  

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could  not  be  said  to  have  been  misled  or  fraudulently  

misguided into passing an order, leave alone, misled by the  

writ-petitioners (respondent herein). It is only because the  

full bench of the Kerala High Court held that anthropological  

study conducted by KIRTADS may not provide a sound basis  

for holding Thandan’s like the respondent as those belonging  

to the scheduled caste category that the issue regarding the  

correctness of the certificate and a fresh investigation into  

the matter surfaced for consideration.  Even if one were to  

assume that the conclusion drawn by KIRTADS was not for  

any  reason  completely  accurate  and  reliable,  the  same  

would not have in the absence of any other material to show  

that  such  conclusion  and  enquiry  was  a  complete  farce  

based  on  wholly  irrelevant  or  inadmissible  material  and  

motivated by extraneous considerations by itself provided a  

basis for unsettling what stood settled by the order passed  

by the High Court. Suffice it to say that the contention urged  

on behalf of the appellants that the order passed by the High  

Court in O.P. No. 9216 of 1986 was a nullity on the ground  

of fraud has not impressed us in the facts and circumstances  

of the case. The upshot of the above discussion, therefore, is  

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that the order passed by the High Court in O.P.No.9216 of  

1986  which  had  attained  finality  did  not  permit  a  fresh  

enquiry into the caste status of writ-petitioner.  Inasmuch as  

the High Court quashed the said proceedings and the order  

passed  by  the  State  Government  pursuant  thereto,  it  

committed no error to warrant interference.   

22. That brings us to the second question which can be  

answered only in the perspective in which the same arises  

for  consideration.  The  Constitution  (Scheduled  Castes)  

Order, 1950 specified   the    castes     that are recognised  

as Scheduled Castes for different states in the Country.  Part  

XVI  related  to  the  then  State  of  Travancore  and  Cochin.  

Item 22 of that part specified the “Thandan” as a scheduled  

caste for the purposes of the entire State.  The Presidential  

Order was modified by The Scheduled Castes & Scheduled  

Tribes Lists (Modification) Order 1956.  In the list comprising  

Part V applicable to the State of Kerala (the successor to the  

State of Trivandrum, Kochi), ‘Thandan’ as a caste appeared  

at  Item  14  for  the  purposes  of  the  entire  State  except  

Malabar  District.  Then  came  the  Scheduled  Castes  and  

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Scheduled Tribes Orders (Amendment) Act, 1976 with effect  

from 27th July, 1997.  In the first Schedule under part VII  

applicable to the State of Kerala ‘Thandan’ as a caste was  

shown at Item 61. Unlike two other castes shown in the said  

part  namely  Boyan  and  Malayan  which  were  shown  as  

scheduled  caste  for  specific  areas  of  the State  of  Kerala,  

Thandan  had  no  such  geographical  or  regional  limitation.  

This  implied  that  ‘Thandan’  was  included  as  a  Scheduled  

Caste for the entire State of Kerala.   

23. Consequent  upon  the  promulgation  of  the  Scheduled  

Castes  and  Scheduled  Tribes  Orders  (Amendment)  Act,  

1976,  the  Kerala  State  Government  started  receiving  

complaints  alleging  that  a  section  of  Ezhuva/Thiyya  

community of  Malabar  areas and certain  taluk of  Malabar  

districts  who  were  also  called  ‘Thandan’  were  taking  

undeserved advantage of the Scheduled Caste reservations.  

The  complaints  suggested  that  these  two  categories  of  

Thandan were quite different and distinct from each other  

and  that  the  benefit  admissible  to  Thandans  generally  

belonging to the Scheduled Caste community should not be  

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allowed to be taken by those belonging to the Ezhuva/Thiyya  

community as they are not scheduled castes.  Acting upon  

these  reports  and  complaints,  the  State  Government  

appears  to  have  issued  instructions  to  the  effect  that  

applications for issue of community certificates to ‘Thandans’  

of  all  the  four  districts  of  Malabar  areas  and  Taluks  of  

Thalapilly, Vadakkancherry and Chavakka in Trichur District,  

should  be  scrutinised  to  ascertain  whether  the  applicant  

belongs to the Thandan community of the scheduled caste  

or  the  Thandan  section  of  Ezhuva/Thiyya  community  and  

that while issuing community certificate  to the ‘Thandans’  

who were scheduled caste, the authorities should note the  

name of the community in the certificate as “Thandans other  

than Ezhuva/Thiyya”. These instructions were withdrawn to  

be followed by another order passed in the year 1987 by  

which the Government once again directed that while issuing  

caste certificate, the Revenue Authority should hold proper  

verification  to  find  out  whether  the  person  concerned  

belongs to Thandan caste and not to Ezhuva/Thiyya.  The  

matter  eventually  reached  this  Court  in  Palghat  Jilla  

Thandan Samudhaya Samrakshna Samithi and Anr. v.   

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State of Kerala and Anr. (1994) 1 SCC 359 in which this  

Court  formulated  the  principal  question  that  fell  for  

consideration in the following words:

“The  principal  question  that  arises  in  these  writ   petitions and appeals is in regard to the validity of   the  decision  of  the  State  of  Kerala  not  to  treat   members  of  the  Thandan community  belonging to   the erstwhile Malabar District, including the present   Palghat District, of the State of Kerala as members   of the Scheduled Castes.”

24. This Court reviewed the legal position and declared that  

Thandan  community  having  been  listed  in  the  Scheduled  

Caste order as it then stood, it was not open to the State  

Government  or  even  to  this  court  to  embark  upon  an  

enquiry  to  determine  whether  a  section  of  Ezhuva/Thiyya  

which was called Thandan in the Malabar area of the State  

was  excluded  from  the  benefits  of  the  Scheduled  Caste  

order.  This Court observed:

“Article 341 empowers the President to specify not   only castes, races or tribes which shall be deemed to   be Scheduled Castes in relation to a State but also   “parts  of  or  groups  within castes,  races  or tribes”   which shall  be deemed to be Scheduled Castes in   relation to a State. By reason of Article 341 a part or   group or section of a caste, race or tribe, which, as a   whole, is not specified as a Scheduled Caste, may be   specified as a Scheduled Caste. Assuming, therefore,   that  there  is  a  section  of  the  Ezhavas/Thiyyas   community (which is  not specified  as a  Scheduled   

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Caste)  which  is  called  Thandan  in  some  parts  of   Malabar  area,  that  section  is  also  entitled  to  be  treated  as  a  Scheduled  Caste,  for  Thandans   throughout the State are deemed to be a Scheduled  Caste by reason of the provisions of the Scheduled   Castes  Order  as  it  now  stands.  Once  Thandans  throughout the State are entitled to be treated as a   Scheduled Caste by reason of the Scheduled Castes   Order as it now stands, it is not open to the State   Government to say otherwise, as it has purported to   do in the 1987 order.”

(emphasis supplied)

25. What  followed  from  the  above  is  that  Thandans  

regardless  whether  they  were  Ezhuvas/Thiyyas  known  as  

Thandans belonging to the Malabar area, were by reason of  

the above pronouncement of this Court held entitled to the  

benefit  of  being  treated  as  scheduled  caste  by  the  

Presidential  Order,  any enquiry  into  their  being  Thandans  

who were  scheduled  caste  having  been  forbidden  by  this  

Court  as  legally  impermissible.  The  distinction  which  the  

State Government sought to make between Ezhuva/Thiyyas  

known as Thandans like the respondent on one hand and  

Thandans who fell in the scheduled caste category, on the  

other,  thus  stood  abolished  by  reason  of  the  above  

pronouncement. No such argument could be countenanced  

against the respondent especially when it is not the case of  

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the appellants that the respondent is not an Ezhuva from  

Malabar area of the State of Kerala.

26. The legal position has since the pronouncement of this  

Court in  Pattika Jathi’s  case (supra) undergone a change  

on account of the amendment of the Presidential Order in  

terms  of  The  Constitution  (Scheduled  Castes)  Order  

Amendment  Act,  2007  which  received  the  assent  of  the  

President  on 29th August,  2007 and was published in  the  

official  gazette  on  30th August,  2007.  The Act,  inter  alia,  

made the following change in Part VIII – Kerala for entry  

61:–

“61. Thandan (excluding Ezhuvas and Thiyyas who   are known as Thandan, in the erstwhile Cochin and   Malabar areas) and (Carpenters who are known as  Thachan,  in  the  erstwhile  Cochin  and  Travancore   State)”.     

27. There is in the light of the above no manner of doubt  

that Ezhuvas and Thiyyas who are also known as Thandan,  

in the erstwhile  Cochin and Malabar areas  are no longer  

scheduled caste for the said State w.e.f. 30th August, 2007  

the date when the amendment was notified. The Parliament  

has,  it  is  evident,  removed  the  prevailing  confusion  

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regarding Ezhuvas and Thiyyas known as Thandan, in the  

erstwhile  Cochin  and  Malabar  areas  being  treated  as  

scheduled  caste.  Ezhuvas  and  Thiyyas  even  if  called  

Thandans and belonging to the above area will no longer be  

entitled to be treated as scheduled caste nor will the benefits  

of reservation be admissible to them.   

28. Taking note of the amending legislation, Government of  

Kerala has by Order No.93/2010/SC/ST dated 30th August,  

2010 directed that Ezhuvas and Thiyyas who are known as  

Thandan,  in  the  erstwhile  Cochin  and  Malabar  shall  be  

treated as OBCs in List III. This part was not disputed even  

by Mr. Giri, counsel appearing for the respondent who fairly  

conceded that consequent upon the Amendment Act of 2007  

(supra)  Ezhuvas  and  Thiyyas  known  as  Thandan,  in  the  

erstwhile Cochin and Malabar areas stand deleted from the  

Scheduled Castes List and are now treated as OBCs by the  

State Government.  What is significant is that the deletion is  

clearly prospective in nature for Ezhuvas and Thiyyas known  

as  Thandan in  the  above region  were  in  the  light  of  the  

decision  of  this  Court  in  Pattika  Jathi’s  case (supra)  

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entitled to be treated as scheduled caste and the distinction  

sought to be made between ‘Thandans’ who were Ezhuvas  

and Thiyyas and those who were scheduled caste was held  

to be impermissible and non est in the eye of law. The law  

declared  by  this  Court  in  Pattika  Jathi’s  case  (supra)  

entitled all Thandans including those who were Ezhuvas and  

Thiyyas  from  Cochin  and  Malabar  region  to  claim  the  

scheduled  caste  status.   That  entitlement  could  be  taken  

away retrospectively only by specific provisions to that effect  

or  by  necessary  intendment.  We  see  no  such  specific  

provision or intendment in the amending legislation to hold  

that the entitlement was taken away retrospectively so as to  

affect  even  those  who  had  already  benefited  from  the  

reservation for scheduled caste candidates. At any rate, a  

certificate issued to an Ezhuvas known as Thandan who was  

a native of Cochin and Malabar region of the State could not  

be withdrawn as The Constitution (Scheduled Castes) Order,  

1950 did not make a distinction between the two categories  

of  Thandans till  the Amendment Act of  2007 for the first  

time introduced such a difference.  

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29. That  apart  the  question  of  ouster  of  Ezhuvas  and  

Thiyyas known as Thandan on account of the confusion that  

prevailed for a considerable length of time till the decision of  

this  Court  in  Pattika  Jathi’s  case  (supra)  would  be  

unjustified both in law and on the principles of equity and  

good  conscience.   In  State  of Maharashtra  v.  Milind  

(2001) 1 SCC 4, this Court was dealing with a somewhat  

similar  situation.  That  was  a  case  where  a  student  had  

secured admission to the MBBS degree course by claiming  

himself  to  be  a  Scheduled  Tribe  candidate.  The  student  

claimed  that  Halba-Koshti  were  the  same  as  Halba,  

mentioned in the Constitution (Scheduled Tribes) Order. This  

Court held that neither the Government nor the Court could  

add to the List of castes mentioned in the Order and that  

Halba-Koshtis  could  not  by  any  process  of  reasoning  or  

interpretation  treated to be Halbas.  Having said  that,  the  

question that fell for consideration was whether the benefit  

of  the  reservation  could  be  withdrawn  and  the  candidate  

deprived of the labour that he had put in obtaining a medical  

degree.  This  Court  while  protecting  any  such  loss  of  

qualification acquired by him observed:

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“In  these  circumstances,  this  judgment  shall  not   affect the degree obtained by him and his practising   as a doctor.  But we make it  clear that he cannot   claim to belong to the Scheduled Tribe covered by   the  Scheduled  Tribes  Order.  In  other  words,  he  cannot  take  advantage  of  the  Scheduled  Tribes   Order  any  further  or  for  any  other  constitutional   purpose. (***) we make it clear that the admissions   and  appointments  that  have  become  final,  shall   remain unaffected by this judgment”.  

30. Kavita Solunke v. State of Maharashtra, (2012) 8  

SCC 430,  was also a similar case where the question was  

whether  the  appellant  who was  a  ‘Halba-Koshti’  could  be  

treated  as  ‘Halba’  for  purposes  of  reservation  and  

employment  as  a  Scheduled  Tribe  candidate.  This  Court  

traced the history of  the long drawn confusion whether a  

‘Halba’ was the same as ‘Halba-Koshti’ and concluded that  

while ‘Halba’ and ‘Halba-Koshti’ could not be treated to be  

one  and  the  same,  the  principle  stated  in  Milind’s case  

(supra)  was  attracted  to  protect  even  appointments  that  

were granted by treating ‘Halba-Koshti’ as Halba Scheduled  

Tribe  although  such  extension  of  the  expression  ‘Halba’  

appearing  in  the  Presidential  Constitution  (Scheduled  

Castes)  Order  1950  was  not  permissible.  This  Court  

observed:

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“If “Halba-Koshti” has been treated as “Halba” even   before the appellant joined service as a teacher and  if the only reason for her ouster is the law declared   by this Court in Milind case, there is no reason why   the protection against the ouster given by this Court   to appointees whose applications had become final   should not be extended to the appellant also. The  Constitution  Bench  had  in  Milind  case  noticed  the   background in which the confusion had prevailed for   many  years  and  the  fact  that  appointments  and   admissions  were  made  for  a  long  time  treating   “Koshti” as a Scheduled Tribe and directed that such   admissions  and  appointments  wherever  the  same  had  attained  finality  will  not  be  affected  by  the  decision taken by this Court”.  

31. In  Sandeep  Subhash  Parate  v.  State  of   

Maharashtra  and  Others,  (2006)  7  SCC  501, also  

dealing with a similar confusion between ‘Halba’ and ‘Halba-

Koshti’  and  applying  the  principle  underlying  in  Milind’s  

case (supra) this Court held that ouster of candidates who  

have  obtained  undeserved  benefit  will  be  justified  only  

where the Court finds the claim to be bona fide.  In State of  

Maharashtra v. Sanjay K. Nimje,  (2007) 14 SCC 481  

this Court held that the grant of relief would depend upon  

the  bona  fides of  the  person  who  has  obtained  the  

appointment and upon the facts and circumstances of each  

case.   

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32. In the instant case there is no evidence of lack of bona  

fide by the respondent. The protection available under the  

decision  of  Milind’s  case  (supra)  could,  therefore,  be  

admissible even to the respondent. It follows that even if on  

a true and correct construction of the expression ‘Thandan’  

appearing  in  The  Constitution  (Scheduled  Castes)  Order  

2007  did  not  include  ‘Ezhuvas’  and  ‘Thiyyas’  known  as  

‘Thandan’ and assuming that the two were different at all  

relevant points of time, the fact that the position was not  

clear  till  the  Amendment  Act  of  2007  made  a  clear  

distinction between the two would entitle all those appointed  

to serve the State upto the date of  the Amending Act came  

into force to continue in service.

33. In Civil Appeal arising out of SLP (C) No.24775 of 2013  

filed against an order dated 5th September, 2012 passed by  

the Division  Bench of  the High Court  of  Kerala,  the High  

Court  has  found  the  cancellation  of  the  Caste  Certificate  

issued  in  favour  of  the  respondent  in  that  appeal  to  be  

legally  bad inasmuch  as  the  Scrutiny  Committee  had not  

applied its mind to the material which was relied upon by  

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the respondent in that case.  No enquiry into the validity of  

the certificate was found to have been conducted nor was  

the order passed by the Scrutiny Committee supported by  

reasons.  There  is,  in  our  opinion,  no  legal  flaw  in  that  

reasoning  muchless  any  perversity  that  may  call  for  our  

interference.  The order passed by the High Court takes a  

fair view of the matter and does not suffer from any illegality  

or irregularity of any kind.          

34. In  the  result  these  appeals  fail  and  are,  hereby,  

dismissed. We, however, make it clear that while the benefit  

granted  to  the  respondent  V.K.  Mahanudevan  as  a  

Scheduled  Caste  candidate  till  30th August,  2007  shall  

remain undisturbed, any advantage in terms of promotion or  

otherwise  which  the  respondent  may  have  been  granted  

after the said date solely on the basis of his being treated as  

a Scheduled Caste candidate may if so advised be withdrawn  

by  the  Competent  Authority.  It  is  axiomatic  that  the  

respondent-V.K. Mahanudevan shall not be entitled to claim  

any benefit in the future as a scheduled caste candidate but  

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no benefit admissible to him as an OBC candidate shall be  

denied. Parties are directed to bear their own costs.        

……………………………………….……….…..…J.         (T.S. THAKUR)

    …………………………..…………………..…..…J. New Delhi                   (VIKRAMAJIT  SEN) January 10, 2014

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